FOIA Fee Survey Results Are In: Fee System Not Working, but no Consensus on Best Fix

“…Congress did not intend the fees be erected as barriers to citizens access, it is quite clear that the Congress did intend that agencies recover [???] of their costs.”

What percentage of agency FOIA costs did Congress intend agencies to recover through FOIA fees? All? Most? Half? Something else? It’s impossible to say since the Office of Management and Budget’s (OMB) FOIA Fee Guidance – from 1987 – which governs when and how all agencies can charge FOIA fees is missing a key word. The outdated-but-still-on-the-books guidance says, “While the legislative history of the 1974 amendments to the Freedom of Information Act shows that the Congress did not intend that fees be erected as barriers to citizen access, it is quite clear that the Congress did intend that agencies recover [word missing] of their costs.” Fees subcommittee chairman Jim Hogan pointed out the startling omission, which prompted the FOIA Advisory Committeeto recommend to the Archivist of the United States that he advise OMB to update its Fee Guidance.

The recommendation is part of the Committee’s broader attempt to address the oftentimes-contentious issues surrounding FOIA-fees. The subcommittee on fees also issued a survey on a variety of fee issues, however it only sent the survey to federal FOIA processors.

In an effort to provide a more comprehensive picture of FOIA fees as they affect all sides of the FOIA process, the National Security Archive and the Project on Government Oversight distributed a similar, independent, unofficial survey to non-government FOIA stakeholders. And with 100 respondents to our questionnaire, we will be able to present the Committee with a more balanced view of the FOIA fees debate at its upcoming January 19 meeting.

64% of respondents fell into the Educational/Non-Commercial/ Scientific Institute/News Media fee category; 9% didn’t know their fee category. If you are unsure of your fee category, check out the Archive’s helpful guide here and page 12 here. There is also an important distinction between fee categories and fee waivers that requesters — and FOIA shops — should be aware of. OGIS’s Amy Bennett has a very useful blog on OGIS’s The FOIA Ombudsman that provides a great refresher on the difference between the two. The key takeaway is that requesters should make every effort to obtain a “favorable fee category” – like news media or educational – rather than seek a fee waiver, which demands “a much higher threshold for consideration than a fee category” (according to FOIA.gov only 56% of fee waivers were granted in FY2014).

The chart below shows what fees agencies can charge requesters based on their fee category:

OGIS fee chart.

Most respondents, 65%, were unaware that under the Open Government Act of 2007 that agencies are not allowed to charge non-commercial FOIA requesters “search fees, or, if applicable, duplication fees” if the agency misses the FOIA’s statutory twenty-day response deadline. The chart below shows that agencies can charge a requester – if anything – if they miss this deadline:

31% of respondents indicated that none of their requests incurred fees, 44% said less than half of their requests incurred fees, and 5% said most requests incurred fees.

36% of requesters were usually satisfied with how agencies handled their fees, 14% were usually not satisfied, and 9% were never satisfied.

Many respondents indicated that their satisfaction level with fee issues did not change by agency (for better or for worse), however several requesters pointed to the Department of Homeland Security’s failure to deal with fee issues adequately. One respondent notes, “Department of Homeland Security agencies have been abysmal, on the whole, particularly CBP, FEMA and ICE, in addition to DHS HQ”; another says “some agencies, such as FBI, and many elements of DHS including CBP and ICE use fees as a tool to avoid the work of having to process FOIAs.” Another respondent noted that the Defense Intelligence Agency was uncooperative (however another respondent indicated the DIA had been most responsive), with another saying “they are all terrible.”

The National Archives received several kudos for their handling of fee issues.

70% of respondents saw an advantage to eliminating FOIA fees, 30% saw a disadvantage. Most who saw a disadvantage to eliminating fees cited concerns that requesters would abuse the system.

Those who saw an advantage to eliminating fees said it would be in keeping with transparent and open government, and noted that fees are not recouped by agencies and cover less than 1% of FOIA costs.

One comprehensive response is as follows:

“FOIA fees do not serve the purpose for which they were designed. They do not bring any appreciable income to agencies to recoup the expenses of processing requests and are only used to obstruct the process and avoid processing requests. Fee categories are constantly misapplied by agencies, very rarely in the requester’s favor, and agencies will refuse to process requests for the months or years that a fee determination is pending appeal. Furthermore, a significant amount of litigation would be avoided if there were no fees, allowing judges to focus on the actual merits of an agency’s response to a request. That being said, I believe that fees should only be eliminated for non-commercial requesters, but that commercial requesters should continue to pay for the services from which they are profiting.”

Respondents were evenly split on how often, if ever, fees encouraged them to narrow the scope of their FOIA requests; many said rarely-to-never, while others said often or almost always. One respondent noted that their fees would be much less of an issue if the agencies were more willing to release documents on CD or electronically rather than providing paper copies.

One respondent suggests that disincentives to charging unnecessary fees is needed, saying “FOIA needs [an] amendment to establish disincentives for unwarranted charging of fees, for example, automatic civil service review for any official who imposes fees later found by a court to be unwarranted.”

The FOIA Advisory Committee’s next meeting is January 19 in Washington, DC. Given the month-long lag between the last meeting and the video recording being made available to those who could not attend, are there any volunteers to use Ustream, periscope, or a similar app to stream upcoming meeting?